All Forum Posts by: William D.

There are a lot of variables to the answer but the easy answer is that a bankruptcy filing does not prevent a bank from releasing their lien in exchange for a short payoff. The delay occurs because if the bankruptcy is pending then you cant do it without the bankruptcy trustee's permission.

To give you a practical response for when your proposed seller brings up the bankruptcy issue, you could respond by acknowledging that if the note was discharged in bankruptcy and not affirmed then they are correct, the only recourse for the lender is the property. However, if they help the bank liquidate the property instead of having to take it through a foreclosure then it may reflect positively on their credit score and their ability to get a loan in the future.

There are a couple ways to remedy your situation. Again, it varies by state, and I am assuming the loan was truly paid and just not released. It happens all the time when you cant track down a release due to an entity being defunct. The first way to solve it is to do some investigating on if there are any corporate power of attorney's that were given by the defunct company. You will probably need your title company to help but you can solve a lot of the issues with just doing some more research.

There is also normally a judicial process on the books in most states which allows you to go to court and essentially get an order from the judge stating that the lien should have been release. You then record the judge's order and that acts as a release.

My point is, this issue happens very frequently and most of the time can be solved. However, if you are bidding at an as is auction with no ability to walk if there are title defects then an indemnification letter should be provided regarding the prior unreleased lien. If not, then you cant assume anything. Caveat emptor.

Depends what the lien is for. Are you sure it's not an IRS lien? I think the US Attorney's office handles most of the IRS work regarding liens. If so, there is an application with them you can file for them to release their lien. I don't recall the procedure off the top of my head but if there is little or no equity they may release. They are less in the business of property management than banks are.

Try to go to the tax collector's office and see if they will provide you the name of the person who paid the taxes for the property. Normally they are the owner, too. It it public information so I don't see any reason they would withhold it from you. This is how I usually get around the issue when I know the address but not the name.

Without knowing the state you are looking to forclose in it is impossible to even guess at a timeline. From a general point of view, it may be faster for you than it may be for large banks because your ducks may be in a row from day one and a court may balance the equities of a private investor versus a gigantic financial institution.

However, it the foreclosure becomes contested on the side of the party being foreclosed on you will most likely not be able to file responsive pleadings as quicky as the large law firms can.

Given that it it BofA it is going to be tough to do. First off, its impossible to tell who the actual beneficiary of the foreclosure action was. The action may have been brought in the name of BofA but owned/guaranteed by FNMA. If this is the case, there is almost zero chance of your offer being considered pre-FNMA REO. However, if it was bank owned or being serviced on behalf of a conventional investor you may be able to get an offer reviewed. If I were you I would look to see who the attorney was who signed any of the paperwork on behalf of the bank and send the offer directly to him. While they may not be retained for purposes of selling the property they may be able to at least put you in the right direction regarding whom to submit an offer to for consideration. Good Luck. It is not an easy task.

Do you have more information regarding the controlling statute? First off, you dont assign real estate. You assign the contract securing the right to purchase/sell the real estate. How could they possibly track this? How does the taxing entity know you assigned the contract?

This has professional malpractice written all over it. You tendered proceeds. The proceeds were accepted and a deed executed and delivered (the deal breaker). The closing agent now is having issues getting the HUD-1 signed because the numbers don't work out to the seller's liking. This is an issue that should have been worked out prior to delivering the deed. Unless you are leaving out some facts this is a big problem for the closing agent. I have a feeling they are trying to spin this issue to appease both sides but on the inside know they have a huge problem. Get competent counsel before you sign anything or put another dollar of work (even before you step foot back on the property).

Just a note on the passing of title, generally title passes once a deed is "delivered". The actual recording (under most common law jurisdictions) is merely to defend title against priority claims. Delivered is a term of art so when it was actually delivered is not going to be black and white. It could have been when the deed was given to the agent with. It could have been when it was mailed for recording. It's impossible to tell given the brief set of facts but most important it's not when the recorded deed comes back from the recording office. Good luck.

Cheryl, this is a really novel issue with many layers to it. I think the easiest issue is that the Protecting Tenants at Foreclosure act would be inapplicable here based on your facts because you are not the immediate successor in interest. That only clears up the validity of the lease however and does nothing for the liability on the security deposit and the advanced rental payments.
I'm sure it's nearly impossible based on the bank's perceived position of total negotiating leverage but have your agent or attorney ask for an indemnification letter. It never hurts to ask and to be honest you don't have any other choice other than to bid or walk away. If you wanted to really play dirty you could have the tenant record an affidavit of facts on the land records to put the bank on notice of the issue and demand it be cleared before closing --fyi, I am not advocating an sort of illegal or unethical behavior.

It's absolutely by state law. Just out of curiosity, which necessary party was omitted? Do you have anymore details? Was it an embrancer? Owner?